Re Muhammad Asghar

CACV 387/2018

[2019] HKCA 112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 387 OF 2018

(ON APPEAL FROM HCAL 787/2017)

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 3 August 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decisions of the Director of Immigration (“the Director”) dated 26 November 2015 and 26 June 2017 rejecting his non-refoulement claim.

2.The appeal was listed to be heard on 17 January 2019.  The applicant was directed to lodge three sets of skeleton argument by 20 December 2018 and was warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning were communicated to the applicant by the Notice of Hearing dated 4 December 2018.  By a letter dated 20 December 2018, the applicant requested additional time for lodging his skeleton argument.  On 24 December 2018, Chu JA extended the time for lodging the skeleton argument to 4pm on 8 January 2019, and further warned that should he fail to lodge the skeleton argument by the prescribed time, the appeal would be determined on paper without an oral hearing.

3.The requirement for lodging skeleton argument in an appeal is set out in Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.

4.In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

5.The applicant is a Pakistani national.  He entered Hong Kong on 22 January 2007 and was permitted to remain as a visitor until 29 January 2007.  He later applied for extension of stay and was permitted to remain as a visitor until 14 February 2007.  He however overstayed and remained undetected for more than six years until he was arrested by police on 11 June 2013.  Immediately after the arrest, he raised a claim for non-refoulement protection on 13 June 2013.

6.The details of the applicant’s personal background and his claim were set out in paragraphs 5 ‑ 50 of the Director’s decision dated 26 November 2015, and paragraphs 1 ‑ 3 and 9 ‑ 20 of the Torture Claims Appeal Board (“the Board”)’s decision dated 21 July 2017.  Briefly stated, the applicant claimed that if he were to return to Pakistan, he would be harmed or killed by the government and the police for he had taken photos and shot a video of an event for a political party, which he later found out to be Jamat-e-Islami.  After police investigation, he found out that the event was an anti-government rally.

7.By a Notice of Decision dated 26 November 2015 and a Notice of Further Decision dated 26 June 2017, the Director rejected the applicant’s claim.  The first decision covered the grounds of the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3], and the second decision was an assessment of the BOR 2 risk^[4].

8.The applicant appealed the Director’s decisions to the Board.  The appeal was heard on 5 July 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds.  By its decision dated 21 July 2017, the Board dismissed the appeal for reasons given in paragraphs 22 ‑ 64.

9.The applicant filed a Form 86 on 19 October 2017 seeking leave to apply for judicial review against the decisions of the Director.  He also filed an affirmation purporting to support the Form 86 application.  He did not state any grounds for judicial review in the Form 86 or the accompanying affirmation.  In the affirmation, he merely stated that he was not satisfied with the Director’s decisions, and recited his claim that his life would not be safe if he were to return to his home country. Otherwise, there was no substance in the affirmation.

10.The applicant did not request for an oral hearing and the Judge proceeded to consider his application on paper.  Although the applicant did not state any grounds for judicial review, the Judge had revealed the papers filed to see if there were any arguable grounds recognised under public law for granting leave to apply for judicial review.  Having considered the papers, the Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  She set out her observations in paragraphs 10 ‑ 13 of the Form Call‑1 dated 3 August 2018, [2018] HKCFI 1681:

“Leave to apply for judicial review

10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11. There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

12. Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

13.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

11.The applicant filed a Notice of Appeal dated 13 August 2018 to appeal the Judge’s refusal of leave to apply for judicial review.  In the Notice of Appeal, he stated that it was unfair for the Judge not to give him an oral hearing before refusing his leave application.  He also referred to all the exhibits to his affirmation filed together with the Form 86 and effectively repeated his allegations that his non-refoulement claim was meritorious.

12.There is nothing in this appeal.

13.First, as mentioned above, he did not request for an oral hearing in the Form 86.  The Judge was therefore fully entitled to deal with the leave application on paper.  Second, other than the lack of oral hearing ground, the applicant has failed to identify what other errors he says the Judge has committed in her reasons in refusing to grant him leave (as set out in full in the Form Call‑1 and quoted above).  In any event, we have reviewed the Judge’s observations and conclusion.  We agree with the Judge’s reasons that the applicant’s intended judicial review is not arguable at all, and leave to apply for judicial review should be refused.

14.The applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.

The applicant acted in person.